Speaking of Ethics: Threatening to Report a Crime That Has Not Yet Been Committed: An Ethical Violation?

From Washington Lawyer, September 2007

By Hope C. Todd

Somewhere in the back of many lawyers’ minds may lurk the disquieting notion that suggesting criminal or disciplinary charges to another lawyer or to an opposing party is not entirely consistent with the mandate of the D.C. Rules of Professional Conduct.

In particular, this notion most often manifests itself when the subject of such a suggestion is the lawyer’s client or, perhaps worse, the lawyer specifically. These situations may arise, for example, when the lawyer is told in the midst of heated negotiations that criminal charges will be filed unless his or her client agrees to a settlement offer; or perhaps, when an opponent proposes not to file a complaint with the client’s regulatory and licensing board if the client accepts certain terms.

D.C. Bar Legal Ethics Committee Opinion 339 addresses the issue of a lawyer drafting a civil debt collection letter who seeks to avoid the hassle of receiving bad checks. The lawyer reasoned that the debtor would be far less inclined to pass a bad check were the debtor specifically made aware that: (1) writing a bad check is a crime; and (2) if the debtor sends the lawyer a bad check and fails to fund it after notice, the lawyer might refer him for prosecution.

Sounds reasonable—and probably very effective—but the plan begs the question: is it ethical?

Rule 8.4(g) makes it professional misconduct to “seek or threaten to seek criminal charges or disciplinary charges solely to obtain an advantage in a civil matter.” In examining whether proposed language in a hypothetical debt collection letter violated Rule 8.4(g), the D.C. Bar Legal Ethics Committee first considered whether the letter’s citation to the D.C. statute making bad check writing a criminal offense constituted a threat. The committee concluded it did not, reasoning that “the mere citation or quotation of a law, without more, is not a per se threat.” D.C. Bar Legal Ethics Comm. Op. 339 (2007).[1]

The committee then considered whether an additional statement, that the lawyer might refer a bad check writer to the police, constitutes a threat. It concluded that it did, finding the suggestion that the lawyer may refer a matter to prosecuting authorities moves the statement “beyond the citation of a law, to a threat to take action to see the law implemented.” Id.

The committee next determined whether the letter’s threat of criminal referral was a threat “. . . solely to obtain an advantage in a civil matter” in violation of Rule 8.4(g). In Opinion 220, the committee had previously explained the decisive question in the application of Rule 8.4(g) is whether the threat is made only to obtain an advantage in the civil matter or whether an alternative motivation exists. In that case, the committee found if a disciplinary complaint is filed with the Office of Bar Counsel in a good-faith effort to comply with a lawyer’s reporting obligations arising under Rule 8.3 (Reporting Professional Misconduct), then it cannot be said to be filed solely for the purpose of gaining advantage in a civil matter and, thus, would not violate Rule 8.4(g).[2]

In Opinion 339, the committee ultimately concluded the letter’s reference to the potential for criminal referral for writing a bad check was not a threat made solely for advantage in a civil matter. Inter alia, the committee credited the lawyer’s experience that many debtors pay with unfunded checks and his desire to avoid this problem. Consistent with
Opinion 220, the committee made clear that the question of motive, the determination of the existence of one other bona fide purpose for threatening a criminal charge while a civil matter is pending, is necessarily one of fact. The context of the threat, the lawyer’s motivations, the likelihood of the threat being misleading and thus misunderstood are all relevant to the conclusion and subject to proper examination in each instance.

As with any advisory opinion, the conclusions of Opinion 339 are specific to the inquiry presented. However, an analysis of the approach taken and understanding of the general principals espoused by the committee offers some practical guidance on how to avoid violating Rule 8.4(g):

In a civil matter, after concluding that contemplated conduct might constitute a threat of a criminal charge, a practitioner would be wise to:

Articulate at least one “imminently plausible alternative explanation” for threatening prosecution. If coming up with such an alternative explanation proves difficult, then it does not likely constitute an appropriate bona fide motivation.

Determine whether the threat is related to past criminal conduct or seeks to prevent future action which is not certain to occur. The latter, given its propensity for inhibiting future crime, may well constitute evidence of an alternative motivation.

Consider whether the threat may violate other rules or substantive law, such as statutes proscribing blackmail.[4]

In the context of Rule 8.4(g), the last two suggestions are related and particularly important; indeed, thwarting blackmail appears to be the original impetus for the existence of the D.C. Rule, which has no counterpart or analog in the American Bar Association (ABA) Model Rules of Professional Conduct.[5]

While threats of any sort strike many as improper, the nature of the adversary system, the existence of civil and criminal penalties for similar or related conduct, the duty of zealous representation, and even practical circumstances may result in their proper and ethical utilization. As always, the practitioner is expected to use his or her best professional judgment to make the determination.

Notes[1]The opinion notes that other rules circumscribe a lawyer’s ability to communicate provisions of law to third parties, such as Rules 4.1 (Truthfulness in Statements to Others) and 4.3 (Dealing With Unrepresented Person). A lawyer should be mindful of these limitations in citing or referencing applicable law.[2] Importantly, Opinion 220 states that threatening to file a Bar complaint, distinct for actually filing one, is not an obligation of Rule 8.3(a).[3] In Opinion 339, for example, the collateral effect of having a debtor pay the underlying debt was acceptable, if the true purpose was to avoid the expense and inconvenience of dealing with a check drawn on insufficient funds.[4] See D.C. Code § 22-3252.[5] But See ABA Formal Opinion 94-383 (conduct proscribed by prior Model Code also proscribed by Model Rule 8.4(b)). The former Code provision, DR 7-105(A), was limited to the threat or filing of criminal charges. The Commentary of the Jordan Committee Report states that the committee felt conduct prohibited by 8.4(g) “which is tantamount to common law blackmail, was serious enough, and it occurrence frequent enough, that a rule clearly forbidding that conduct was needed.”

Legal ethics counsels Hope C. Todd and Saul Jay Singer are available for telephone inquiries at 202-737-4700, ext. 231 and 232, respectively, or by e-mail at ethics@dcbar.org.